In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-14-00255-CR
CISELY WYVETTE MOORE, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 108th District Court
Potter County, Texas
Trial Court No. 51,353-E, Honorable Douglas Woodburn, Presiding
April 2, 2015
MEMORANDUM OPINION
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
Appellant, Cisely Wyvette Moore, appeals the trial court’s judgment by which she
was adjudicated guilty of aggravated assault with a deadly weapon and sentenced to
five years’ imprisonment.1 On appeal, she contends the trial court lacked jurisdiction to
adjudicate her guilt because no motion to proceed to adjudication had been filed. We
will affirm.
1
See TEX. PENAL CODE ANN. § 22.02(a)(2) (West 2011).
Factual and Procedural History
Appellant pleaded guilty to allegations of aggravated assault with a deadly
weapon and was placed on deferred adjudication community supervision on November
1, 2005. In September 2007, her community supervision period was extended by two
years, and was extended again in October 2012. The terms of her community
supervision were also modified a number of times. In December 2013, the State
alleged that she violated the terms of her community supervision, and a warrant was
issued for her arrest. On June 12, 2014, the trial court held a hearing on the State’s
motion to proceed, during which appellant acknowledged having reviewed and
understood those allegations and pleaded “true” to them. The trial court adjudicated
appellant guilty of aggravated assault and sentenced her to five years’ imprisonment.
She has appealed and now contends that the trial court lacked jurisdiction to do so in
the absence of a motion to proceed to adjudication.
Applicable Law and Analysis
The trial court “retains jurisdiction to hold a hearing . . . to proceed with an
adjudication of guilt, . . . if[,] before the expiration [of the period of community
supervision imposed,] the attorney representing the state files a motion to proceed with
the adjudication and a capias is issued for the arrest of the defendant.” TEX. CODE
CRIM. PROC. ANN. art. 42.12, § 5(h) (West Supp. 2014). So, it is clear that a trial court
has jurisdiction to proceed to adjudication when, along with issuance of a capias during
the probationary term, the State files a proper motion to proceed to adjudication within
that same term. See Rodriguez v. State, 804 S.W.2d 516, 517 (Tex. Crim. App. 1991)
(per curiam).
2
That said, appellant is correct that the State was required to file its motion to
proceed to adjudication within appellant’s probationary term. However, appellant is
incorrect, it seems, that a motion was not timely filed in this case. In the original volume
of the clerk’s record, the State’s motion to proceed to adjudication was not included.
Per Rule 34.5, the State requested a supplement to the clerk’s record to include the
timely filed motion, “a relevant item” omitted from the original record. See TEX. R. APP.
P. 34.5(c)(1). The supplemental clerk’s record was filed on November 12, 2014, and
does, in fact, include the State’s “Motion to Proceed with Adjudication of Guilt on
Original Charge” filed December 12, 2013. The supplemental record became part of
the appellate record before us. See TEX. R. APP. P. 34.5(c)(3); Condarco v. State, No.
03-12-00572-CR, 2013 Tex. App. LEXIS 10741, at *19–20 (Tex. App.—Austin Aug. 27,
2013, no pet.) (mem. op., not designated for publication). Appellant has lodged no
objection to its inclusion in the appellate record. Because it appears that a motion to
proceed to adjudication was filed and a capias was issued, both having been completed
within the period of appellant’s community supervision, the trial court had jurisdiction to
proceed to adjudicate appellant guilty of the original charges. We overrule appellant’s
contentions to the contrary.
Conclusion
Having overruled appellant’s sole point of error, we affirm the trial court’s
judgment of conviction. See TEX. R. APP. P. 43.2(a).
Mackey K. Hancock
Justice
Do not publish.
3